Thursday, May 31, 2012

Check out an extensive cover story by Emily DePrang at the Texas Observer ("Life on the List," May 31) exploring the pitfalls of putting juveniles on the sex offender registry through the lens of a man convicted of a sex offense with his sister as a 12-year old (she was eight) who, barring some change, will be on the registry for life. (The family did not want to press charges; the state did so over their objection.) A remarkable tidbit: "During months of research for this story, I actively tried to find
someone to make a case for how the sex offender registry is working and
why juveniles should be on it. As researcher Nicole Pittman had
predicted, I could not find that person." A few other notable details:

One little-realized fact of sexual abuse is that more than a third of
sex offenses against children are committed by other children. In 2009,
the U.S. Department of Justice published a comprehensive bulletin about
child-on-child sex abuse that analyzed multiple studies. It found that
about half of juvenile sex offenders are between 15 and 17, the age
people might expect offenders to be. But many are much younger. More
than a third are between 12 and 14, like Josh was, and one in 20 is
younger than 9.

These children are also not generally being convicted of the crimes
people associate with sex offenders, like rape. Almost two-thirds of
offenses were for fondling or non-forcible offenses like sharing
pornography. But they all are sex offenders under the law.

Among juvenile sex offenders, "3 percent of victims were strangers to their assailants, while a quarter were family members." Further:

The conventional wisdom about sex offenders is that if they do it once,
they’ll do it again. That’s the whole logic behind having a registry.
But statistically, sex offenders are less likely to re-offend than other
kinds of criminals, and juvenile recidivism is even lower. A 2006 study
of 300 registered sex offenders in Texas who were juveniles at the time
of their first offense found that just 4.3 percent were arrested as
adults for another sex crime.

Even victim rights groups didn't support the registry for juveniles in its current form:

Torie Camp is deputy director for the victims’ rights group Texas
Association Against Sexual Assault. She’s one of many who say the size
of the registry makes it less useful and less fair. “The registry
currently treats every single sex offender like they were all the same
type of offender,” she said, “and with 70,000 people on that list,
they’re not. There are some very dangerous people on that list and there
are some people who aren’t very dangerous and don’t need to be listed. I
would say that includes juveniles. From the research we’ve seen,
juvenile sex offenders are the best target group for rehabilitation, and
they do not necessarily pose a threat to the same extent as adult sex
offenders. I would even argue that there are many adult sex offenders
that, having them on the list just scares people in a community. It
doesn’t make them any safer.”

Camp added another common criticism, which is that the registry
creates a false sense of security. “Our research shows that 18 percent
of sexual assault survivors actually make a report to law enforcement,”
she said. Far fewer than that result in a conviction, so Camp said while
the Texas list is enormous, most people who have committed a sexual
assault aren’t on it. “Everybody has sex offenders living in their
neighborhood,” she said. “Just some of them are on the registry and some
are not.”

A panel recently voted to grant parole to Eroy Brown, whose 30 year long saga was the subject of an excellent book by Michael Berryhill, Brown's attorneys were notified yesterday.

Related, seea past Grits post, The Trials of Eroy Brown, a Q&A with Berryhill from the Houston Chronicle, and a Texas Observer cover story on the case. Said Berryhill in the Chronicle interview, "The story of Eroy Brown may seem to be a true crime story and, in a sense, it is. Really, it's a story of the tragedy of Texas prisons going back to the 1950s, the tragedy of how they were run with a plantation mentality with state officials denying what they were doing."

A burglar and armed robber sentenced to 90 years, while an inmate Eroy Brown drowned Ellis Unit Warden Wallace Pack and fatally shot Billy Moore, the unit's farm manager, precipitating a series of high-profile trials that exposed outrageous brutality in the state's prison system. Brown was acquitted separately in each murder on grounds of self defense. Remarkably, he's been serving time for his prior offenses in South Carolina because of the risk of retaliation in TDCJ. Brown will move to a reentry facility run by the Catholic church in Los Angeles when he's released, said one of his attorneys, Bill Habern.

Arguably the biggest news in the Texas criminal justice arena from Tuesday's primary elections was the ouster of two incumbent District Attorneys: John Bradley in Williamson County and Harris County DA Pat Lykos.
At Texas Monthly, Pam Colloff takes a detailed stab at answering the question "Why John Bradley lost," pinning the origins of the Williamson County DA's downfall to the Michael Morton exoneration. (Grits would have been disappointed if such an article failed to mention this blog, having been kicking John Bradley since long before he was down.) The Dallas Observer portrayed Bradley's ouster as having statewide import:

In an interview before Tuesday's election, Gary Udashen, president of
the Innocence Project of Texas, made it clear that voters in Williamson
County were casting ballots that would have statewide implications for
the innocence movement.

"If John Bradley loses his election in Williamson county, then that's
a loud message to prosecutors all over the state is that there actually
are consequences to engaging in prosecutorial misconduct," Udashen
said. He pointed to the fact that many innocence cases, both those that
include DNA evidence (like Morton's) and those that do not, include
instances where prosecutors either deliberately or mistakenly withhold
evidence in support of a person's innocence.

Lots of defense lawyers are concerned about a Mike Anderson DA’s
Office. They foresee a return to the bad old scalp-counting days of
Chuck Rosenthal. I’m not worried. The results I got for my clients under
Rosenthal were no worse than those I’ve obtained in the last four
years.

DIVERT [a pretrial diversion program for DWI] is going to go the way of the dodo, but Anderson will honor
the agreements made by defendants with the Lykos DA’s Office. The policy
against taking charges on trace drug cases will vanish; that doesn’t
bother me (except as a part of the war on drugs, to which I object but
of which it’s a small part). Pretrial diversions won’t be as common, but
dismissals will take their place. The reality is that the
criminal-justice system is strained, and the DA, whoever it is, will
have to make decisions on allocating resources.

That last bit is the critical issue: Lykos as DA took responsibility for the office's role in resource allocation throughout the whole system, not just in her office, adjusting policies that Anderson wants to reverse in order to reduce felony court caseloads and overcrowding at the county jail. I agree Anderson will inevitably be constrained by resource allocation, which drives policies much more than ideology. But my fear is that he'll consider resource allocation at the jail (Democratic) Sheriff Adrian Garcia's problem, changing policies to reverse the remarkable decline in inmate numbers that has dramatically relieved county budget pressure from corrections spending. (Just a couple of years ago, Harris County housed 1,000+ local inmates on contract in Louisiana.) Worst case scenario: A year or so after Anderson takes office, Harris County is shipping inmates to Louisiana again and raising taxes to pay for pretrial detention and maybe an expanded jail voters already rejected. This, apparently, is the "conservative" thing to do.

On the D-side in Houston, perennial candidate Lloyd Oliver, who runs by his
own admission to get his name on the ballot as free advertising, ran no
campaign but defeated the party's reportedly much more promising challenger, Zack Fertitta. Most Dems I've heard from want nothing to do with Oliver's candidacy, so unless Lykos enters
the race as an Independent, Anderson will coast into office (as will Ms. Duty).

What do these elections "mean" regarding public sentiment? In both cases, IMO less about ideology than either innocence advocates (in Bradley's case) or tuff-on-crime types (in Harris County) might contend. Indeed, what's the common thread in the three big contested DA contests in Travis, Harris and Williamson? To me, it's special-interest backing: When police unions and their PACs vigorously campaigned for a DA candidate, they won, even in the GOP, strangely, whose voters are otherwise generally hostile to public-employee unions. (The police union in Houston in particular in rolling in cash.) The Michael Morton case may be what convinced Jana Duty to enter the DA's contest and demonstrated John Bradley's vulnerability, but it was mobilization by Williamson County law-enforcement unions on her behalf that arguably put her over the top. If they'd campaigned for Bradley, IMO he would have won. Once they abandoned him, he was toast.

Grits spent 14 years working professionally in campaigns and in that time I learned that most non-campaign professionals tend to read into election results whatever they want. Murray Newman's reaction summed it up: "My analysis of the election is mostly just a confirmation of what I've always thought." That's true of most electoral analysis, especially when you hear folks claim an election is a "mandate" for this or that particular policy. In reality, the reasons elections are won or lost are more related to money, organization, and the vicissitudes of fate, like in this case a delayed, low-turnout election. Candidates in urban counties can't (without selling their souls) raise enough money to effectively communicate with or turn out voters, who as a result enter the voting booth virtually blind, especially on downballot courthouse races. In that context, special interest spending makes all the difference, and if there's any lesson from Tuesday's DA elections, to Grits it's that that continues to be the case.

“John Bradley represents everything that’s
wrong with the criminal justice system in Williamson County. … He is
more concerned with protecting his reputation and his statistics than he
is seeking justice and the truth.” — Williamson County Attorney Jana Duty

“I
don’t think, on its face, that a DNA result ... [on] a piece of
evidence away from the crime scene immediately proves innocence.” — Williamson
County DA John Bradley, in August 2011, about testing a bandanna that
was linked to the Christine Morton murder scene and pointed to another
man, and not husband Michael Morton, as the killer. Bradley had opposed
the DNA tests.

Wednesday, May 30, 2012

Let's clear the decks of a few recent non-election related items that merit Grits readers' attention:

CCA: End justifies means on illegal traffic stopsReported the Courthouse News Service, "Police can make illegal traffic stops if the driver or passengers have
outstanding warrants, the divided Texas Court of Criminal Appeals ruled." Read Liberty and Justice for Y'all's take on this ignominious opinion, "Attenuating the Taint."

Congress may prohibit employers requiring social media passwords
Legislation
has been filed in Congress to prevent employers from requiring
employees to give up their social networking username and password, reports The Back Gate. The Texas Department of Criminal Justice allegedly had done just that, the website reported earlier.

Adios, Injustice Everywhere
The CATO Institute has taken over the National Police Misconduct Reporting Project
after a brief hiatus following its founder's retirement, and has
resumed the site's original mission publishing daily summaries of
police-misconduct related news stories found online. The site,
previously called "Injustice Everywhere," has migrated to a new URL,
policemisconduct.net. Congrats to David Packman for successfully passing off the project.

'Why We Lie'
The Wall Street Journal excerpted a forthcoming book which argues, "We tend to think that people are either honest or dishonest. ... But that is not how dishonesty works. Over the past decade or so, my
colleagues and I have taken a close look at why people cheat, using a
variety of experiments and looking at a panoply of unique data sets—from
insurance claims to employment histories to the treatment records of
doctors and dentists. What we have found, in a nutshell: Everybody has
the capacity to be dishonest, and almost everybody cheats—just by a
little." Most people cheat right up until they think it makes them look bad, says the author. "Sadly, it is this kind of small-scale mass cheating, not the high-profile cases, that is most corrosive to society."

Stop and frisk on trial
A federal judge granted class-action certification in a civil rights lawsuit to plaintiffs alleging mass constitutional violations under New York City's famed "stop and frisk" policy. Those interested can read the judge's blistering opinion (pdf). Unless an appellate court says otherwise, the suit will put the "stop and frisk" policy itself on trial.

Could most gunfire incidents really go unreported?
Something doesn't add up here.The New York Times has a story on cities which have adopted "ShotSpotter" technology which allows them to triangulate the source of gunfire by sound. The company charges cities a yearly fee of $40-60,000 per square mile as a subscription package. Predictably, concerns have been raised about recording conversations in one incident (the system isn't supposed to). More surprising, though: the technology has "made it clear how much unreported gunfire takes place on city streets. ... In the Bayview-Hunter’s Point neighborhood of San Francisco, for
example, where one square mile is covered by ShotSpotter sensors, only
10 percent of the verified incidents of gunfire detected by the system
were accompanied by 911 calls, Commander Ali said. In Oakland, Sergeant
Bolton said, only 22 percent of the verified gunfire the system detected
over a three-month period was also reported by residents." Those are eye-popping numbers: One wonders if that much "verified" gunfire truly goes unreported or if the technology is generating false positives?

Last week, counsel for former US Senator from Alaska Ted Stevens put out a statement damning the Department of Justice for issuing light punishments to prosecutors who failed to turn over exculpatory evidence and engaged in other misconduct, noting that the case "resulted in the loss of Senator Stevens’ re-election bid" and, as a result, the "balance of power shifted in the United States Senate." See the May 24 statement from Williams Connolly LLP, below the jump, via White Collar Crime Prof Blog.

In the three years after release, about 32 percent of Texas state
jail offenders and 24 percent of the prison population will be
re-incarcerated, according to a Sunset Advisory Commission review of the
Texas prison system released this month. Taxpayers bear the burden when
offenders are re-incarcerated at an average cost of $50.79 per day, the
review says.

Finding housing and employment are crucial to an
ex-offender's successful reintegration into society, experts say. But
after serving their time, many ex-offenders find that they cannot get a
job without a home address and cannot find a place to live without the
money to pay rent. So they may end up roaming the streets.

During a
2011 homeless survey in Tarrant County, more than 76 percent of the 410
people surveyed said their criminal records were the main reason they
were unemployed, according to Cindy Crain, executive director of the
Tarrant County Homeless Coalition.

Kay Smith, founder of Texas
Re-Entry Services, said: "If you are coming out of state prison you get
$100, a bus ticket home and a suit of clothes. If they have a place to
go they're lucky. If they aren't lucky they end up homeless."

During
the past three fiscal years, funding cuts have curtailed Re-Entry
Services' reach, Smith said.

Grits was interested to see a lobbyist for apartment owners suggested a version of tort reform that might induce more landlords to rent to tenants with criminal records:

The issue for landlords and property owners is not money, but
liability, said John Mitchell, executive director of the Apartment
Association of Tarrant County. Landlords who rent to ex-offenders,
whatever the crime, increase the likelihood that they will be sued if
that person commits another crime that harms a tenant, Mitchell said.

"There
are a lot of great people out there who are trying to get their feet
back under them, but their housing options are limited," Mitchell said.
"If their risks could be limited, I'm sure landlords and property owners
would open up their portfolios to some nonviolent ex-offenders."

If that's true, then we'd only have to worry about the VIOLENT offenders ending up homeless and desperate after being released from prison ... great!

What many folks don't seem to realize is that most criminals in prison will eventually be released and the more important question than how long they stayed is how will they behave when they get out? Texas now releases (far) more inmates every year than were incarcerated in the entire prison system in 1990 when Ann Richards was elected. The Startlegram reported that, of the "75,000 inmates whom the Texas Department of Criminal Justice releases
every year ... about 7,000 are expected to return to Tarrant
County." That includes people who committed violent crimes. It includes sex offenders. Common sense dictates that they must be able to find a home and a job as well. Good intentions aside, if they can't, who will be surprised when, in desperation, they eventually return to crime?

Grits continues to maintain that the most significant "spillover" of violence and corruption along the Texas-Mexico border, at least so far, happens north to south. Most recently, reported the Wall Street Journal ("Mexican businessman charged in Texas with money laundering," May 24), a federal indictment alleged that "an array of
corporate entities in Texas" laundered money used to bribe "elected officials and political candidates in Tamaulipas," the Mexican state across the river from Brownsville whose northern and eastern borders are defined by the Rio Grande and the Gulf of Mexico. Said the Journal:

Inc. magazine has a profile of Catherine Rohr, the founder of Texas' Prison Entrepreneurship Program (PEP) who left in disgrace when she revealed having had sexual affairs with program graduates following her divorce. As folks in Texas' prison milieu will surely recall:

Cherie Townsend, head of the Texas Juvenile Justice Department, announced today that she's retiring at the end of next month following harsh criticism from state Sen. John Whitmire, who accused her of having a "hug a thug" mentality for not utilizing solitary confinement.

Until the Legislature fixes structural flaws, though, and adequately staffs facilities, the underlying problems aren't going away. Now that Townsend's on her way out, who will be the next scapegoat? Honestly I don't know who would want the top TJJD spot: It's a bit like the honor of being named Darth Vader's next lieutenant. Find Townsend's letter to employees announcing her retirement below the jump.

Monday, May 28, 2012

It's been a long time since this country has engaged in a serious discussion regarding the importance of constitutional clemency authority vested in the executive branch, at least unless you count the tired, Willie-Horton-esque "gotcha" coverage faced by the few governors and presidents who dare exercise their pardon power (usually timidly, and only as lame ducks). Of all the checks and balances envisioned in the Constitution by the framers, arguably none have become more atrophied from disuse or degraded from bipartisan scorn than the pardon power.

In Federalist Paper 74, Alexander Hamilton explained that the President should enjoy sweeping, unrestrained pardon and commutation authority because, without "easy access" to clemency, "justice would wear a countenance too sanguinary and cruel." Grits does not believe it a coincidence that executive clemency in the justice system has reached all-time lows just at the historic
moment that the United States reached the pinnacle of mass
incarceration, with 5% of the planet's population and 25% of its
prisoners. Hamilton warned us. When clemency withers, justice becomes "too sanguinary and cruel." And so it has.

Two weeks ago, Washington Post/Pro Publica coverage of Clarence Aaron's commutation denial by the Bush II Administration launched a rare round of press coverage of clemency that happily coincides with the Pardon O. Henry! web petition (be sure to go sign it if you haven't). The Post/ProPublica stories alleged that the US Pardon Attorney's office at the DOJ misrepresented key facts to Aaron's detriment, even though the Bush Administration told DOJ they were looking for more suitable applicants.

Aaron's story and systemic flaws exposed at the Pardon Office have energized pro-clemency sentiment in the political arena perhaps more than any time in recent memory. Most recently, former Maryland Gov. Robert Ehrlich and Julie Stewart, president of Families Against Mandatory Minimums, co-authored an item on "The Hill" blog critiquing the "grossly inept Office of Pardon Attorney (OPA) at the U.S. Justice
Department." They wonder aloud how many clemency recommendations were based on misrepresentations, declaring that "Congress must investigate this vitally important
taxpayer-funded office immediately." (The House Judiciary Committee's ranking member John Conyers is suggesting just that.) However, the pair did not go as far as a recent call from former Obama White House Counsel Greg Craig to remove the clemency vetting function from DOJ altogether.

Additionally, FAMM held a panel discussion last week in D.C. which included Aaron's mother and the journalist, Dafna Linzer, who authored the ProPublica series. Their lengthy press release gives a flavor of the event, which I said on the Pardon O. Henry blog "provided glimpses of the human stories behind the stacks of denials." San Francisco Chronicle columnist Debra Saunders called on President Obama to "reform presidential pardons," but really he just needs to grant more.

Highlighting and critiquing this paucity of pardons, this virtual clemency vacuum we've witnessed in the 21st century, particularly at the federal level, was the reason the Pardon O. Henry campaign was launched. Upon doing so, one thing we quickly learned about the pardon issue is that most people are incredibly cynical regarding clemency, jaded perhaps by its infrequency, perceived irrelevance, and/or political misuse.

Grits is especially fascinated by a seeming bipartisan opposition to clemency based on mutual hatred of the other party's standard bearers (while among partisans, one's own party's clemency decisions usually may be justified). Democrats flagellate President Ford for pardoning Nixon, or Bush I for pardoning Iran-Contra figures, while Republicans gleefully squeal about Bill Clinton pardoning Marc Rich. Pardons are viewed by the political class - who're worried about the next election the way short-sighted corporations focus myopically on the next quarter - as all risk, no reward, fearing the political ramifications if a pardoned person later commits a crime, kills someone in a DWI, etc..

Such political considerations ignore clemency's fundamental role in the justice system as conceived by constitutional framers, who installed it as part of a system of checks and balances as essential as the veto, judicial review, or the requirement that the House and Senate both pass legislation. The difference is, those other things still actually happen in 21st century America, while the pardon power has become virtually passé. The "easy access" to clemency framers envisioned has become little more than a cruel joke for the overwhelming majority of those seeking mercy, even as 2.3 million people are presently locked up in America, while millions more have a felony on their record.

The only recent presidential candidate with any meaningful stance on clemency has been Ron Paul, who on the campaign stump promises he would commute sentences for thousands of nonviolent federal drug offenders. In today's clemency context such an act would appear breathtaking, but in fact it's one of the reasons the pardon power was created: To facilitate justice on a mass scale when case-by-case review by the justice system would thwart broader policy goals, like ending the drug war (or for that matter real wars). As a libertarian, Paul argues that commuting thousands of drug sentences is the single quickest way to make more Americans free. From a purely mathematical perspective, that's a hard position to argue!

Indeed, anyone who supports ending the drug war should also support a resuscitated clemency power. After all, if all drugs were legalized tomorrow, there would still be hundreds of thousands of people in state and federal prisons serving time for something that would no longer be criminal, serving far longer sentences than did rum-runners after Prohibition. By what other means could those sentences be commuted or past offenses pardoned except through executive clemency? And how can that happen politically when the public views clemency as spurious or corrupt? The same goes for political opposition to mandatory minimums: Even if Congress or state legislatures were to reduce or eliminate mandatory minimums, it would require clemency by executives or state parole boards to affect the many thousands already incarcerated under such terms.

Grits hopes this serendipitous round of media coverage will spark a more rigorous review of clemency's decline and energize efforts toward its resuscitation. And with luck, the PardonOHenry.org campaign can become a small part of that discussion later this year, both on the sesquicentennial of the writer's birth and during the President's absurd annual turkey pardoning ritual (which sparked the petition idea in the first place after Obama last year quoted the un-pardoned writer while sparing the life of a bird).

So sign the petition, or if you've already done so, go the Recruiting page
where you can pick up a "personal tracking link" you can use
to promote it. If you do, you'll get credit on
Pardonohenry.org's Leader Board for everyone who joins the campaign via your link. These discussions surrounding the Clarence Aaron case and possible Congressional hearings could put clemency closer to the front burner in the coming year than it's been in decades. It's an interesting time to be working on, and thinking about, the issue.

Finally, since we're on the subject, over at the blog Pardon Power,
Prof. P.S. Ruckman - who is drafting the O. Henry pardon application for
submission before the writer's 150th birthday - has begun posting short
vignettes from his research on the writer in preparation for that task.
See:

"If you let one run loose, what are you
gonna' do with the rest of 'em?," said Judge Lanny Moriarty. "Let them
go too? A little stay in the jail for one night is not a death
sentence."

But Tran's classmates said she had a lot more to juggle than the average teen.

"She goes from job to job from school. She
stays up until 7 a.m. in the morning doing her homework," said Devin
Hill, a classmate and co-worker.

On top of that, Tran said her parents spilt up and moved away, leaving her to support her younger sister. (Ed. note: The sister lives with a relative; Tran lives with an employer's family.)

The judge admitted that he wanted to make an example of the teen.

Tran had to spend 24 hours in jail and had to pay a $100 fine.

Notably, public reaction in favor of the teen and against Judge Moriarty, who told KHOU he feared that, if he dismissed Tran's case, other defendants would think, "Well, he’s soft. He’s not gonna do nothing." (On Reddit, someone commented that "Moriarty" is a terrific name for a villain)

So the judge is worried about the message he would send, but was the message he ACTUALLY sent really "stay in school"? Or was it, "Your situation doesn't matter." "You don't matter." "Excellence be damned." "The pettiest of our rules are more important than your desperate life circumstances. Drop out if you can't follow them all because we'll jail you if you don't." What message do you think was sent by the judge's sentence, and what harm might come from Moriarty using his discretion to let Miss Tran avoid jail? Do you think the judge's decision encourages Montgomery County youth to stay in school, or to drop out if it looks like work and/or familial obligations might make them miss a few days?

Saturday, May 26, 2012

Several people have asked recently who Grits supports in the local Travis County District Attorney's race, so I thought it worth iterating my preference for Judge Charlie Baird over incumbent Rosemary Lehmberg in that race, for reasons detailed here, here, and here. Bottom line: "My sense is Charlie Baird will be more willing to try new things and
move more aggressively to improve processes when errors happen, if only
because he'll have no personal, institutional stakes in defending the
status quo, a reflex which from time to time seems to stymie the
incumbent," who will have worked at the Travis County DA's office for forty years when the next term ends. For more on the race, the Austin Statesman's Patrick George has their final, wrap-up coverage today, see "Programs for offenders, officer-involved shootings top issues in DA's race"; see also coverage from the Austin Chronicle.

In other local courthouse races, as mentioned previously, I support David Wahlberg over Yogurt-shop prosecutor Efrain de la Fuente to replace Judge Mike Lynch (see the Statesman's coverage of that race here), and am frankly still undecided on the Sheriff's contest. Challenger John Sisson is a single-issue candidate, but I agree with him on the single-issue, while the incumbent has proven competent but uninspiring. Nobody has convinced me, yet, though time grows short. See the Statesman's coverage of the race and their half-hearted endorsement of Hamilton.

Friday, May 25, 2012

I've seen this movie. From Mike Ward at the Austin Statesman, state Senate Criminal Justice Committee Chairman John Whitmire said TYC officials are engaging in "hug a thug" behavior for not using solitary confinement more frequently, or in TX juvenile justice jargon, imposing "behavioral management plans" on youth ("Juvenile justice officials disagree on reopening Waco-area lockup," May 24):

At issue is whether to use the empty beds at the McLennan County
Juvenile Correctional Facility in Mart — single-cell rooms with a higher
level of security than most of the six campus-like facilities that hold
most of Texas' 1,100 teenage offenders. Supporters say the cells could
separate the troublemakers from other youths and reduce violence. But
opponents, notably Texas Juvenile Justice Department Executive Director
Cherie Townsend, say moving the offenders would disrupt their schoolwork
and their treatment.

The stalemate comes amid continuing reports
of assaults and violence at agency facilities. On May 14, several people
were reported injured as youths rioted at the Evins Regional Juvenile
Justice Center in Edinburg. It was the second such uprising there in
five months. On Monday, six youths at the Giddings State School broke
down a door and climbed onto a dorm roof before guards subdued them with
pepper spray.

Two months ago, the disclosure of escalating
violence, unchecked gang activity, extortion rings and general unrest at
Giddings sparked a legislative inquiry.

For those who don't recall (assuming anyone even cares anymore), this is PRECISELY how TYC reacted the first time Sen. Whitmire launched into his Queen of Hearts impersonation and began shouting "Off with their heads!" (We're definitely through the looking glass, now.) The agency cracked down, expanding use of solitary confinement in just the way being suggested in this article, then had to roll it back once agency leaders discovered legal limits on the practice.

Grits argued recently that many of the agency's problems stemmed from failing to follow the recommendations of the "blue ribbon" panel of experts convened by the Governor because of the expense of shifting from large to small facilities. We can add "ditto" on the question of use of solitary. From a 1/16/08 Houston Chronicle article:

Juvenile justice experts expressed disappointment, but not surprise,
upon hearing of the alleged stepped-up reliance on isolation at the
agency — particularly so soon after the abuse scandal broke and after
the agency found itself the target of a lawsuit over its increased
reliance on pepper spray to subdue difficult youths.

"Solitary confinement has been universally condemned by courts in the juvenile justice system," said Barry Krisberg, president of the California-based National Council on Crime and Delinquency, and a member of the task force in Texas that last year recommended TYC reforms.

"Nothing good happens when you isolate youth. These are youth that are already having trouble communicating," Krisberg said.

Then-TYC Ombudsman Will Harrell issued a memorandum four years ago (which Grits uploaded here) detailing the legal limits of BMP. Critically, and this was the bane of BMP expansion under then-executive director Dimitria Pope, use of solitary confinement at TJJD is regulated by a federal settlement agreement described in a memo appended to Harrell's report. Most folks have forgotten this history, but restrictions on BMP stem from
a 1973 lawsuit, Morales v. Turman. Back then, a federal "Court ordered that
certain practices of TYC, including the conditions of solitary
confinement, be abolished pending final order of the Court. Ten years
later, after a good faith effort by TYC to improve facilities and
protect the plaintiffs’ rights, the parties agreed on a settlement,
setting forth, among other things, TYC commitments, policies, and goals
regarding use of isolation and security" (citations omitted). Concluded Harrell, "The
settlement agreement remains binding today, and any dispute arising in
regard to its enforcement, if not resolved amicably, may be enforced by
the plaintiffs in any court of competent jurisdiction."

The agreement "includes provisions regarding (1) the appropriate reasons for placing youth in isolation or security; (2) limits on the duration of that placement; (3) necessary treatment of inmates while in isolation or security; and (4) appropriate conditions of confinement in isolation or security," all of which he alleged TYC was violating in 2008. Here's an overview of the settlement provisions from the report's summary:

The 1983 settlement agreement that ended litigation in Morales v. Turman prohibits facilities from using isolation as a mode of retaliation or as a first-resort punishment, and limits its use to when the facility’s superintendent agrees that an inmate is out of control and dangerous. When the inmate is sufficiently under control, he or she shall be released. Isolation should not be used for more than 3 hours. The agreement, with a few exceptions, allows placement in security only as a last resort, and for no longer than 24 hours. If the inmate is kept in security longer than 24 hours, he or she is entitled to impartial review and appeal of his or her confinement. While in isolation or security, inmates must receive: daily visits from the superintendent and personnel from clinical, social work, and medical units; appropriate psychological and medical services; and the same food, prepared in the same manner, as other inmates.

So there are limits to expanded use of solitary that TYC under Ed Owens and Dimitria Pope failed to respect but which still apply if TJJD decides to crack down again - whether or not Cherie Townsend is in charge - including appellate procedures if isolation lasts longer than 24 hours. Grits suspects a program maxxing out solitary confinement under the Morales v. Turman settlement still wouldn't satisfy revanchist critics within the agency who're driving this recommendation. They want to use solitary as punishment, not behavior management, and likely wouldn't be satisfied if, "When the inmate is sufficiently under control, he or she shall be released."

IMO expanded STAFFING of youth prisons, along with shifting away from larger facilities altogether, as the Governor's blue-ribbon panel recommended, would do more to reduce both current problems and future crime than expanded solitary confinement. But legislators wanted to reform TYC while cutting costs and eschewed such suggestions, so here we are. Larger youth prisons that were failing five years ago are still failing for the same reasons. Like I said, we've already seen this movie: It's over-hyped, has too much violence, a crappy ending, and it goes on way too long.

Thursday, May 24, 2012

Part of me finds the idea of personalized fingerprint readers carried around by police officers abhorrent, even as part of me is already resigned to their inevitability. They're rolling them out now in the UK at Scotland Yard and the London Metropolitan Police.

But for what, precisely, would they be used? Judge Caprice Cosper in Houston has suggested repeatedly that deployment of these personal fingerprint scanners would make police more comfortable with using their cite-and-release authority for certain Class B misdemeanors because they could be sure at the scene who they were letting go. That's supposedly what's happening in England. According to BBC, "A suspect's fingerprint can be taken on the device and almost instantly checked against the police database. If a match is discovered, further relevant investigations can be made by an officer at the station. An NPIA spokesman said data from the scan is only used to check a match and is not retained."

Here's what I don't understand, and perhaps some informed reader can help me out: I've sat through presentations from Texas DPS fingerprint examiners who insisted that, unlike on TV (and apparently England) where fingerprints are matched in seconds by a computer, in Texas a real live human subjectively, laboriously compares prints for possible matches, and a second fingerprint examiner must verify it before a match can be declared. When a new set of fingerprints comes in, they go onto the stack until an actual person gets around to looking for a match, and that person generally has a backlog.

So if deployed in Texas, as Grits understands it these personal fingerprint examiners wouldn't let officers ID an individual on the street, they would only gather data which could be used later for whatever purpose. (In the UK, by contrast, the data "is not retained"). I can see where it might be useful for investigators interviewing suspects, witnesses, etc., for future reference. But as long as fingerprints are matched manually, these personal fingerprint scanners wouldn't let Texas police ID individuals at the scene. They'll still have to find out who they are the old fashioned way: By asking them.

First, a fired crime-lab scientist has sued Austin Police Chief Art Acevedo for defamation; see the Austin Statesman for details. Truth is a defense for libel, so this civil suit could result in a sterner vetting, even, than the Forensic Science Commission will provide regarding whether allegations of drylabbing are legit.

Meanwhile, here's an example of how one bad forensic scientist can come back to haunt counties for years: District Judge Jon Wisser has recommended that the Court of Criminal Appeals overturn another conviction because former medical examiner Dr. Robert Bayardo overstated and biased testimony to favor the prosecution. His unscientific zeal has led to more than one false conviction; the most recent one before this (to my knowledge) was Michael Morton. This time, the defendant, Cathy Henderson, was convicted in an infamous local child-abduction/death case that I remember well. She said the child died from a fall and panicked, burying it and running. Bayardo testified decisively that the injuries could only have come from a concerted blow. It was one of those super high-profile cases that was in the newspaper every day, involved movie-worthy drama, and there was an extraordinary amount of pressure on police, the DA and apparently the medical examiner to both convict and max out the sentence. Bayardo has now changed his opinion to conform to the defense experts, and without Bayardo's linchpin testimony, Judge Wisser found "no reasonable juror would convict her and he recommended that the Court
of Criminal Appeals dismiss her conviction and return the case to Travis
County to face whatever charges prosecutors may choose to pursue." Now this hairball has been barfed up into DA Rosemary Lehmberg's lap, and I suppose could end up back with another jury: Thanks Dr. Bayardo.

Lots of interesting tidbits from the roundtable, but let's point out one element of the discussion below the jump about whether training is sufficient to cause prosecutors to hand over exculpatory evidence to the defense, or if punishment is needed for noncompliance.

A federal drug-war grant fund called the "Weed and Seed" program has bitten the dust as part of budget cutting in Washington, D.C., reported the St. Louis Post-Dispatch ("Anti-crime program 'Weed and Seed' runs out of money," May 23). Checking online, Grits found that the office managing Weed and Seed grants has indeed been shuttered, with the Justice Department managing grants until they expire. Right now there are ten active Weed and Seed grants in Texas that presumably will expire at the end of the fiscal year without possibility of renewal - two grants each in Houston and Dallas, and one grant apiece in San Antonio, Austin, Fort Worth, Corpus Christi, Arlington and El Paso.

Other federal law-enforcement grants have been cut in recent years (Bush II tried to eliminate most of them entirely) and pressure has grown to use federal grants for projects that do more than just maximize drug arrests. Grits has never been a fan of federal subsidies for local law
enforcement functions, believing they artificially boost supply of
law-enforcement services beyond taxpayers' actual local level of demand
(because the feds borrow to pay for it instead of adopting a
pay-as-you-go approach). Moreover, it abrogates the separation of responsibilities under federalism for federal money to pay for local law-enforcement, particularly when they do it in some jurisdictions but not others.

Grits happens to live in the Central East Austin Weed and Seed area and while they've sometimes funded community events with the money, I've never witnessed any public-safety benefit one could peg to the program. Anyway, given my druthers, I'd prefer publicly funded cultural events be financed on their own merits, not as a law-enforcement public relations initiative, which is how Grits perceives much of the Weed and Seed programming. Plus, the "weed" part of the program "consists primarily of suppression activities such as enforcement, adjudication, prosecution, and supervision efforts designed to target, apprehend, and incapacitate," which doesn't sound quite as touchy-feely as their more widely publicized activities.

Budget cuts are often portrayed in the media as an immediate crisis, especially by law enforcement, but they're also an opportunity to overcome inertia and re-assess priorities. Grits won't be surprised (nor disappointed) to see federal law-enforcement grants continue to dry up given the rivers of red ink flowing out of Washington. So much of the federal budget is obligated to military and entitlement spending, these sort of discretionary grants are just the sort of low-hanging pork fruit that IMO budget cutters will find increasingly difficult to justify.

A state law that went into effect in September aims to audit and
eventually develop the resources to examine the cache, stipulating that
all law enforcement agencies must report untested rape kits to the Texas
Department of Public Safety. DPS officials said the department also is
collecting only a limited number of kits and processing them through
grants.

But not all agencies have submitted their data to DPS. And
some law enforcement authorities and forensic experts question the
statutory guidelines that outline what sexual assault cases need to be
reported, saying they are too broad, do not take into account
investigative work and might require them to provide information on
untested rape kits that do not need to undergo the costly examination.

Though
DPS does not charge law enforcement agencies to evaluate the evidence,
the safety department can spend up to $800 on each kit it analyzes,
depending on the tests it conducts. At a private lab, the analyses for a
box with several items plus a comparison with a suspect profile can run
more than $5,000, authorities said. About 100 Texas agencies have
reported more than 12,700 untested kits, DPS officials said.

Most agencies have not yet reported their backlog numbers, including some of the larger ones.

In Texas, which is third in the nation in the number of exonerations,
84 percent of DNA exonerations came in cases in which witnesses had
made false identifications.

Now, flaws in eyewitness
identification procedures are taking center stage as the deadline
approaches for Texas law enforcement agencies to comply with reforms to
state law.

As of Sept. 1, the agencies must adopt methods to
ensure the reliability of their procedures for eyewitness
identifications, as part of House Bill 215. The Legislature approved the
measure last year in memory of Tim Cole, the Texas Tech University
student from Fort Worth who died in prison after he was wrongfully
convicted of rape based on a false ID.

At the Innocence Project of Texas where I work, we're planning a research project after local policies are in place this fall in which we will acquire police and Sheriff's eyewitness ID polices under the Public Information Act and assess their adherence to core principles underlying the "model policy" under the statute. Once that happens, we'll have a better idea which departments are open to improving their methods and which ones will be digging in their heels.

In Brownsville, police are unable to enforce regulations on bail bond companies, they say, literally when the violations are occurring inside police headquarters, which also houses the municipal court. "Throngs" of bail bondsmen gather there each day in violation of county regs while officials look the other way, reported the Brownsville Herald ("Bail company solicitation violations rampant," May 23):

The Cameron County Bail Bond Board prohibits bail bond companies from
approaching people to ask for business in a police station, jail,
prison, detention facility or anywhere on state, city or county property where people are detained by law enforcement.

Penalties can range from loss of a surety license to a public reprimand or return of the fees charged in the transaction.

The violation is rampant in Brownsville, and allows bondsmen to take
advantage of stressed people unfamiliar with the bail system, police and
those interviewed for this article said.

The Brownsville Police Department is investigating two complaints
received last week regarding bondsmen soliciting clients inside the
police department.

On any given morning, throngs of bondsmen are in or near the
courtroom inside the Brownsville Police Department, hoping to get
business from those arrested the previous night.

Ironically, "A warning sign on the door advises bondsman of the county regulation." So essentially as one walks through the police department into the municipal court in Brownsville, one receives the implicit message, fair or not, that this is a place where the law is honored mostly in the breach. A comparable image might be a "No smoking" sign on the wall with "throngs" of smokers casually puffing away around it. Or the corner near my neighborhood where years ago the city put up "Drug Free Zone" signs under which teenagers stand around slinging dope. Except this operation is going on literally inside the police department.

The explanations for non-enforcement seem inexplicable, with police saying to stop the practice an "officer has to keep watch." But that's just rationalization. Is there really no bailiff in the municipal court, no clerk? Not a single court officer who could approach bail bondsmen and tell them they have to leave? Even if not, an officer wouldn't even need to be stationed there full time. Dropping by one or two times each morning to chase off the vultures would likely be sufficient - it's not like they'd have to travel far. That's an excuse, not a reason.

Municipal courts handle only Class C misdemeanors which carry no jail time and a maximum fine of $500. But an anecdote was recorded of one Brownsville bail bondsmen (regrettably unnamed by the reporter) who approached a confused woman and convinced her to give him $300 to get her husband released.

[Elane] Flores said she felt vulnerable and desperate that morning, late in
December, and too willingly handed over a wad of cash to a stranger. She
said the bondsman took the money and walked away without offering a
receipt or business card.

“As soon as he took the money and started leaving, my heart started
racing. There was no business card. Everything was sinking in,” Flores
said.

The man did bail out her husband, but she was out several hundred
dollars. The company did not call her to tell her it posted bond, nor
did it openly communicate afterward, she said.

They refunded her $150 of the $300 after she repeatedly complained.

How did they arrive at the $300 figure? It was "all the cash she had available," the paper reported. The atmosphere surrounding the transaction reminds me of experiences traveling in Turkey where hawkers from hotels and other vendors would mercilessly accost confused tourists with sales pitches the moment they get off the bus. The price of the services offered, like the bail bondsman's in the story, always seemed to vary based on the mark's customer's ability to pay..

But let's leave aside for a moment WHERE the transaction took place. In Grits' opinion, a bondsman attempting to charge 60% of the maximum fine to get Class C misdemeanants released is little better than a straight-up hustler or con man preying on the vulnerable. If that's legal, it's a legalized swindle, akin to some of the legalized (or at least, unprosecuted and unrestrained) cheating that goes on on Wall Street. To have it taking place inside the police station, however, awards the practice in the public eye with law enforcement's implicit stamp of approval. I'm sure it seems like business as usual to those involved, but to Grits the whole situation appears incredibly cynical and brazen.

How much do you wanna bet the "solution" proposed will be to eliminate the regulation instead of enforce it?

UPDATE/CORRECTIONS: A pair of commenters have corrected two misconceptions in this post: First, the ban on soliciting in the police department isn't just a county reg, as reported in the story, it's a Class B misdemeanor to "solicit bonding business in a police station, jail, prison, detention facility, or other place of detainment for persons in the custody of law enforcement." Second, another commenter informs us the municipal court in this case "handles magistration of all crimes, not only Class Cs," which much better explains the gaggle of bondsmen. Still, Ms. Flores' husband was arrested for public intoxication, a Class C offense, so the critique about charging 60% of the maximum fine amount for Class C bonds still holds.

Tuesday, May 22, 2012

Last year Grits wondered aloud if the Texas Board of Pardons and Paroles had created massive civil liability for themselves and the state by continuing to defy the federal judiciary over the application of "Condition X," which is a battery of sex-offender conditions (basically everything except public registration, including residency restrictions, etc.) applied as a condition of parole, even though the parolee has never been convicted of a sex offense. Now a federal judge has answered that question, "Yes," reported Mike Ward at the Austin Statesman ("Judge: Parole officials can be held liable over sex-offender restrictions," May 22). If the ruling stands, and the parole board doesn't change its ways, its members could start having to pay out of their own pockets. The story opened:

In the latest rebuke of state policies for classifying parolees as
sex offenders, an Austin federal judge has ruled that top state parole
officials can be held personally liable for continuing missteps.

U.S.
District Judge Lee Yeakel of Austin, in an order issued late Friday,
blasted the state's continuing refusal to provide due process hearings
before imposing restrictive sex-offender conditions on felons never
convicted of a sex crime.

Yeakel for the first time ruled that the
seven-member state Board of Pardons and Paroles, 12 parole
commissioners, state parole director Stuart Jenkins and other parole
officials can face monetary damages for their actions.

It's a
significant determination that, if not reversed on appeal, could prove
costly for both the officials and taxpayers, if several pending inmate
lawsuits are successful.

This ruling has been years and years in the making. A jury has already held once that parole board members should be held personally liable for intentionally violating parolee rights in this fashion. Judge Sam Sparks overruled jurors at the time, but not before saying of parole board Chair Rissie Owens, "Her inattention is mystifying, and it shows her
to be some combination ... of 'indecisive, insensitive, inattentive,
incompetent, stupid, (or) weak-kneed.'" Apparently Sparks' colleague Judge Yeakel has finally lost patience.

At one point parole officials swore in court the board had assigned Condition X to around 7,000 parolees, but later offered lower figures. Nobody seems to know for sure, but everyone agrees it's more than the number for which the parole board could reasonably hold individualized hearings. To be clear: The question before the court isn't whether Condition X might be appropriate in some
cases, it's whether there must be some sort of due process before
assigning that tag, or can the parole board do it by fiat? They feds aren't saying the parole board can't do assign Condition X where there's no sex-crime conviction, just that they can't do it without showing cause in a
hearing. Here's Ward again, tying together the pieces:

In his order Friday, Yeakel ruled that the state has for six years
been aware that it must provide hearings to parolees in such cases and
that officials' continuing failure to do so leaves them open to
liability.

"In light of the resistance of the state of Texas to
providing parolees with the procedural due process guaranteed them by
the Constitution, even after receiving repeated mandates from federal
and state courts, the court is unconvinced that Texas will not return to
its unconstitutional policies and practices," the 31-page order states.

"Any
stigmatic injury suffered by Yeary due to the imposition and continued
enforcement of Special Condition X may entitle Yeary to compensatory
damages."

One of the reasons this has dragged on so long is that the cases come up one at a time, so even if the parole board loses one case they don't change their policies on all the others. So, for example, in 2009 a jury awarded personal damages of $21,250 against board chair Rissie Owens to Ray Curtis Graham for assigning him Condition X while denying him a required "Coleman" hearing for 576 days. Judge Sparks declined at that point to hold parole board members personally liable, instead vesting liability with the agency. So they just kept doing it. Will parole board members begin following the courts' repeated directives now that they have some skin in the game?

If you'll excuse an off-topic indulgence, long-time readers may recall that my niece Maggie Lee Henson died along with another boy nearly three years ago in a tragic church bus accident, lingering three excruciating weeks in intensive care before finally giving up the ghost. My brother and sister-in-law have jointly authored a book about their extraordinary personal and spiritual journey in the aftermath of that family cataclysm titled "Maggie Lee for Good," which is also the name of an annual memorial on Maggie's birthday which began in 2009 and has taken on quite a life of its own. The mostly online campaign encouraged people to perform one good deed or act of kindness in Maggie Lee's memory on her birthday, October 29. Tapping into religious communities not just in Louisiana, Texas and the South but worldwide (my brother is a preacher in Shreveport), the effort far surpassed anyone's expectations, with more than 18,000 people participating in the first year. This book documents both stories of goodness that resulted from the ML4G campaign and their family's personal struggles and crises of faith during that dark hour in their lives. From the publisher, here's the set-up:

There was no DNA to clear Anthony Graves but that doesn't mitigate his innocence. Innocent people set up by corrupt cops in Tulia and the Dallas "Sheetrock"/fake-drug scandal could have never been cleared if DNA were the only means to exoneration, but those cases resulted in false convictions nonetheless.

The big news surrounding the innocence movement this week is a new national "exoneration registry" compiled by the Northwestern University Center on Wrongful Convictions, which attempts to include non-DNA cases in the count of "innocence" cases. The total tops 2,000, including 873 individual cases as well as 13 major police scandals that falsely netted 1,170 other people. (According the the excellent registry website, the total of individual exonerations bumped up to to 891 since the report was published.) Ten of the Texas exonerees listed had been sentenced to death, out of 101 death-row exonerations identified nationally over the 23 year period.

As with DNA exonerations, though, these cases should be viewed as essentially statistical sample through which one may analyze causes of false convictions, but they do not reliably inform us about their frequency. "No matter how tragic they are, even 2,000 exonerations over 23 years is
a tiny number in a country with 2.3 million people in prisons and
jails. If that were the extent of the problem we would be encouraged by
these numbers. But it’s not. These cases merely point to a much larger
number of tragedies that we do not know about," said the report (pdf).

The Texas Tribune has compiled a list of the individual exonerations on the registry from Texas, and two of the thirteen mass exonerations listed - the Tulia drug stings and the Dallas "Sheetrock" scandal - were from Texas. I don't understand why a third famous Texas drug scandal in Hearne wasn't included: It's not like nobody knew about it, the episode was chronicled in a feature film directed by Tim Disney called American Violet. Most of the mass exoneration cases described were for drug offenses, whereas most of the individual exonerations were for murder or sexual assault. Once you start to include false convictions from the drug war the numbers add up quickly.

Notably, not every Texan on the list of the exonerated is eligible or innocence compensation. Former death row inmate Clarence Brandley made the list, though the governor's office insisted that the exoneree compensation law (often billed as the most generous in the nation) be written specifically to exclude him, state Sen. Rodney Ellis said on the Senate floor when the legislation passed in 2009. Meanwhile, Brandley's fellow death-row alumnus Kerry Max Cook is not on the list, but dispositive DNA evidence should add him to the registry before long, pending the outcome of ongoing habeas proceedings. That to say, this is a list that can, and will be nitpicked, both by folks who think other cases should have been included and those who think some of those on the list "really did it," which happens all the time.

OTOH, looking at the data by jurisdiction, it's clear the registry number under-represents the real exoneration total: "The 873 exonerations in the Registry come from 43 states, the District of Columbia, the Commonwealth of Puerto Rico, 19 federal districts, and the military. They are very unevenly distributed by state, and especially when broke down by county. This suggests we are missing many cases – both innocent defendants from jurisdictions where exonerations are vanishingly rare, and exonerated defendants whose cases have received little or no public attention."

For example, does anybody really believe there wasn't a single false conviction in San Antonio between 1989 and 2012? There are many who would disagree. IMO that absence of Bexar County exonerations speaks more to a lack of diligence and openness by local officials to reviewing such cases than it does the perfection of Bexar County's decidedly imperfect process. For example, DA Susan Reed has never established a post-conviction review unit like her counterparts in Dallas and Harris Counties to vet possible innocence claims.

Such shortcomings are why this data may only be usefully viewed as a sample, the way a pollster may question 800 people and estimate the opinions of the public at large. This registry allows one to explore the hows and whys of exoneration, but still not the $64 question "How often?" (Grits has discussed this issue in detail and I won't reiterate the arguments here, which have been the subject of much scholarly debate, but Grits' best guess would be in the 1.5% range which, if accurate, would mean more than 2,000 innocent people are presently locked up in Texas prisons.)

One factor that tamps down the numbers in the registry, I can say for a fact having slogged through the Tulia exonerations (back when I worked for Texas ACLU) and more recently having watched nearly miraculous DNA exonerations, often resulting in men freed after 15, 20, 25, even 30 years: The only innocent people who get out are the ones who fight, persistently, over a long period of time, or have someone on the outside doing it for them. And even then, you have to get lucky: I could point to ten different moments during the Tulia saga when, if
this or that serendipitous development had not gone defendants' way,
those folks would still be in prison. I've little doubt Jeff Blackburn
and Vanita Gupta, the attorneys spearheading that exoneration effort,
would readily agree.

There's a huge amount of raw luck involved in most exonerations, even in DNA cases: Was the evidence retained? Can it be found or was it lost? Was it contaminated? Is there enough left to test? Kerry Cook went looking for a piece of evidence to test in his 35-year old case and one of the detectives had taken the murder weapon home as a "souvenir." The combination of luck, smarts, persistence, and often media attention that result in exonerations amount to a near-perfect storm that cannot be replicated for every workaday innocence case - certainly not if there are as many of them as published estimates suggest.

Another interesting tidbit from the report that jibes with my experience: One reason most exonerations seem to happen in the most serious types of cases - besides the fact that those are where biological evidence is likely to have been saved - may be that, "With a few exceptions, exonerations take a long time. The overall average is 11.9 years from conviction to exoneration, 13.0 years from arrest," according to the report. So folks with shorter sentences for lesser crimes may just get out in a few years before anybody figures out what's happened to them.

Grits has not yet had a chance to review the report (pdf) or the website carefully and may have more to say on the subject once I've done so, but in the meantime here are links to some MSM coverage of the document:

Monday, May 21, 2012

First, many of you have not yet signed the Pardon O. Henry! petition. Please do it right now. Go ahead, we'll wait for you. ... Finished? Sure? Now, once you've signed, don't forget to forward the link to your friends and refer the link on Facebook and Twitter.

In fact, once you've signed the petition, go the Recruiting page where you can pick up a "personal tracking link," which you should use to promote the petition. If you do, you'll get credit on Pardonohenry.org's Leader Board for everyone who joins the campaign via your link. Indulge your competitive spirit: See how many folks you can get signed up using your own social networks, email address book, etc.. Wagering encouraged, if short-story fans or philatelists do that sort of thing. (Grits mentioned before one purpose of this campaign is to set up web organizing infrastructure which can be used on other issues, and you're seeing it bit by bit.)

For the more old school among you, here's a PardonOHenry.org flyer (pdf) that you can print out, copy and distribute at events, post on the bulletin board at the local library, school, or community center, or distribute any other way you see fit. Do what you can to get the word out.

Forbes has a story with the same headline in this post detailing the saga of Kerry Max Cook's three and a half decade struggle to clear his name from a completely false capital murder conviction which DNA evidence has since debunked. Read it.

Cook recently lost an effort to get the venue for his habeas writ changed out of Smith County, where a Tyler police sergeant had actually carried off some of the evidence from his case as a souvenir. He was devastated, understandably believing it's essentially impossible for him to get justice in my hometown as long as the current crop of judges and prosecutors rules the political roost there and the local media is in the can for them (and they are). I understand Cook's pessimism - after the roller coaster ride he's been on (three capital murders trials for a crime he didn't commit!), it would be nearly impossible not to become pessimistic, and it's a testament to my fellow Tylerite's gumption that he's still fighting 35 years after his life was stolen from him. But Grits is slightly more sanguine about his chances because, as America's second President John Adams put it, "facts are stubborn things," and this time around it's the DA confronted with, in the lawyer's lingo, extraordinarily "bad facts." DNA evidence - not tested until after Cook's plea deal to escape death row - demolished the prosecution's theory of his guilt. If the additional DNA testing he's seeking confirms that finding, as expected, I'd like to believe we've reached the point where Cook can be exonerated, even in Smith County. We'll see, won't we?

Relatedly, I recently ran across this commentary from Kerry last year on the passing of Randall Dale Adams, arguably the first among modern exonerees, whose story was exposed by the documentary, The Thin Blue Line. A couple of notable quotes from that missive: "Death row was a lot of things, but most of all, it was a wild and crazy place, a
hate factory and an austere human repository warehousing every conceivable
mental and emotional disorder known to the Diagnostic and Statistical Manual of
Mental Disorders (DSM)." And another: "Randall's ordeal with Texas officials and the fight to clear his name and be recognized
was so grueling and intense; he left public life and moved back to his hometown
of Columbus, Ohio where he died" in 2010.

Having now been privileged to meet so many Texas exonerees - including several, like Kerry (not yet formally an exoneree, but closer than ever) who spent years on death row - one element folks probably can't appreciate from afar is the personal toll the ordeal takes on these individuals, who are then expected to take on roles as spokesmen, public figures with no training or background to prepare them for a media environment that even professionals find dizzying and baffling. And for those who haven't received compensation, like Kerry, they must simultaneously struggle to make ends meet in a world where many still consider them murderers, rapists, etc.. Kerry Max Cook has handled that grueling process better than most, many times essentially on his own. But the DNA evidence, not to mention recent court rulings, arguably make his position much more favorable now than in it was in the 1990s when he pled to capital murder for time served to avoid a fourth trial - at least unless Smith-County good-ol-boyism somehow gets in the way.

If his writ were being heard in Dallas or Houston, I'd say it would be a slam dunk. But Tyler ain't Dallas or Houston. Good luck, Kerry.

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